Federal Courts and Nominations

Senate Democrats Again to Push for Vote on D.C. Circuit Nominee Halligan

By Todd Ruger 


Senate Democrats will push for a confirmation vote this week for Caitlin Halligan, the nominee to the shorthanded U.S. Court of Appeals for the D.C. Circuit who has drawn the most opposition from Republicans in the last two years.


Senate Majority Leader Harry Reid (D-Nev.) announced Monday that he would try to overcome Republican opposition of Halligan’s nomination as part of a push for several confirmations this week, including two New York district court judges and John Brennan for Director of the Central Intelligence Agency.


Reid called it “a test of Republicans’ good will,” and judicial nomination watchers say the showdown could affect the trajectory of a confirmation process that has been mired in filibusters and partisan politics. The rhetoric could also be inflamed by the broader fight in Congress about gun regulation, one of the grounds on which Republicans have stated their opposition to Halligan.


Republicans previously filibustered Halligan’s nomination in December 2011, the only time it has come up on the Senate floor. They repeatedly used Senate rules to send her nomination back to the White House, even singling her out from other nominees to do so. Each time, the White House has re-nominated Halligan, the general counsel of the Manhattan district attorney’s office.


Reid, who backed away from major changes to the filibuster rules at the beginning of this year, took to the Senate floor Monday to say Republicans told him this year that they would not obstruct confirmations “for the sake of obstruction.” Yet Republicans blocked former Republican Senator Chuck Hagel’s confirmation for Secretary of Defense in February, a first time a cabinet official has been blocked, Reid said.


If the Senate fails to property staff the judicial system, Reid said, “our inaction will also have consequences.”


No judges have been confirmed to the 11-judge D.C. Circuit since President Barack Obama took office. Two more spots have opened up since Halligan was first nominated in September 2010. “There are now four vacancies,” Reid said of the D.C. Circuit. “The court desperately needs more judges.”


Chairman Senator Patrick Leahy (D-Vt.), chairman of the Senate Judiciary Committee, said on the Senate floor Monday that Republicans blocking nominees to the D.C. Circuit are increasing the impression that Republicans are trying to stack the court to one side.


“It is frustrating to know there is a concerted effort on the other side to try to stop having a balance in the D.C. Circuit,” Leahy said. “That doesn’t help the system of justice in the United States. It destroys the impartiality of the courts.”


Senate Republicans did not immediately indicate whether they would filibuster this latest effort to give Halligan a confirmation vote. Reid would need some help from Republicans if there is a filibuster. It takes 60 votes to break the block and allow for a vote; there are 53 Democrats and two Independents who caucus with them in the Senate. If the filibuster is ended, Halligan then would need 50 votes to be confirmed.


Off of Capitol Hill, advocacy groups staked out battle lines. A conservative group, Committee for Justice, described Halligan on Monday as “a committed opponent of gun rights, an apologist for enemy combatants and an all-around judicial activist.”


CFJ President Curt Levey, in a statement, called on Republicans to oppose Halligan, especially senators the group identified as most likely to vote to end a filibuster. The list includes Senator Lindsey Graham, who voted “pass” (instead of “no”) when Halligan was voted out of the Judiciary Committee last month; Senator Lisa Murkowski (R-Alaska), the only Republican to vote for cloture on Halligan the last time around; and senators John McCain (R-Ariz.), Lamar Alexander (R-Tenn.), Susan Collins (R- Maine) and Mark Kirk (R-Ill.).


Gun rights advocates have said they oppose Halligan because as New York state’s solicitor general she sued gun manufacturers as public nuisances. Halligan served as solicitor general from 2001 to 2006. In 2007, she joined Weil, Gotshal & Manges, where she served as head of the firm’s appellate practice until she took her current post in 2010.


The progressive Constitutional Accountability Center, in a letter to Reid’s office last week, said Halligan’s conservative opponents have been cherry-picking through her record. “As with most if not all attorneys who have had the great honor of serving as the lawyer for a State or other governmental entity dealing with a myriad of legal and political concerns and interests, Ms. Halligan’s record is replete with arguments made on behalf of her clients that could be characterized as ‘conservative,’ along with others that could be characterized as ‘liberal,'” the letter states.


Alliance for Justice, also a liberal advocacy group, said that Halligan is highly qualified and that a block of her nomination would be a classic example of the misuse of the filibuster. “If Republicans carry out their threat to filibuster Halligan for the second time in as many years, it will make clear that the recent agreement to ‘reform’ Senate rules really was no agreement at all, but rather a blank check for continued obstruction,” AFJ President Nan Aron said in a statement.


The Leadership Conference on Civil and Human Rights sent senators a letter supporting Halligan, pointing out that Republicans in 2010 said the court’s current caseload did not warrant filling the ninth seat. According to the nonpartisan Administrative Office of the U.S. Courts, the caseload per active judge on the D.C. Circuit has risen more than 50 percent since 2005.


The court has had longstanding vacancies. When Obama was elected, there already was a vacancy on the D.C. Circuit because John Roberts Jr. was elevated to the U.S. Supreme Court in 2005. Since then, Judge Raymond Randolph took senior status in November 2008, Judge Douglas Ginsburg also took senior status in October 2011, and Judge David Sentelle took senior status in February.


Obama also chose to nominate Srikanth Srinivasan, principal deputy solicitor general of the United States for the court. Srinivasan, nominated in June, has not had a hearing before the Senate Judiciary Committee because Republicans are seeking more information on a Department of Justice action.


Halligan was voted out of the judiciary committee on a 10-7 party-line vote February 14. After the vote, White House Press Secretary Jay Carney said Halligan and the other judicial nominees “deserve immediate consideration” by the full Senate and that a delay is needless and unacceptable.


“Ms. Halligan has the experience, integrity, and judgment to serve with distinction on this court, which now stands more than a third vacant,” Carney said. “Her broad bipartisan support from the legal and law enforcement communities should lead to swift confirmation.”

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